Skripal case: Theresa May now demands Russia prove itself innocent

British government lacking evidence of Russian guilt reverses the burden of proof

Theresa May speaks to reporters after being confirmed as the leader of the Conservative Party and Britain's next Prime Minister outside the Houses of Parliament in Westminster, central London, July 11, 2016. REUTERS/Neil Hall

After a week of speculation and allegations British Prime Minister Theresa May has finally spoken about the murder attempt on the former British spy Sergey Skripal, which has left both him and his daughter critically ill.

Based on the positive identification of this chemical agent by world-leading experts at Porton Down, our knowledge that Russia has previously produced this agent and would still be capable of doing so, Russia’s record of conducting state-sponsored assassinations, and our assessment that Russia views some defectors as legitimate targets for assassinations, the government has concluded that it is highly likely that Russia was responsible for the act against Sergei and Yulia Skripal….

Either this was a direct act by the Russian state against our country. Or the Russian government lost control of this potentially catastrophically damaging nerve agent and allowed it to get into the hands of others…

Should there be no credible response, we will conclude that this action amounts to an unlawful use of force by the Russian state against the United Kingdom……

This attempted murder using a weapons-grade nerve agent in a British town was not just a crime against the Skripals.

“It was an indiscriminate and reckless act against the United Kingdom, putting the lives of innocent civilians at risk. And we will not tolerate such a brazen attempt to murder innocent civilians on our soil. I commend this statement to the House….

The first thing to say about this statement is that it is essentially an admission that the British authorities have not been able to identify any suspects who might have carried out the attack on Skripal.

No person or persons have been identified as suspects in the case, and the only conclusion one can draw from Theresa May’s statement is that the British authorities either do not have the names of any suspects, or are uncertain about any names they do have..

I say this because if the British authorities did suspect any person or persons of carrying out the attack, Theresa May would presumably not be publicly speculating about whether this person or these persons might or might not have acted on the Russian government’s instructions.

The second thing to say about this statement is that the Russian attribution the British government is making is entirely based upon a scientific assessment that the nerve agent used in the attack was one of the agents developed by the USSR in the 1970s and 1980s as part of the so-called Novichok programme.

On the face of it this seems an uncertain basis upon which to attribute responsibility.

Details of the Novichok programme were disclosed by the Russians to the West decades ago, and the properties of the nerve agents developed as part of this programme are well known. That presumably is why it was possible to assess that the nerve agent used in the attack on Skripal was one of the nerve agents developed as part of this programme.

Given that this is so, it is not obvious how it is possible to say that because the nerve agent used was of a type which was originally developed in Russia as part of the Novichok programme, that must mean that the Russian government or Russians were definitely responsible for the attack.

That seems to me a little like saying that because sarin was originally developed decades ago in Germany, that means that any chemical weapons attack which uses sarin is attributable to Germany.

The danger involved in using the supposed origin of a poison to identify the perpetrator is in fact shown by what happened in the Litvinenko case.

At the time of the murder in 2006 of Alexander Litvinenko Britain was awash with claims that the polonium with which he was poisoned was extremely expensive, was only made in Russia, and had been positively traced back to Russia. These claims were widely treated as providing the proof that the Russian authorities were responsible for Litvinenko’s murder.

In the event, the public inquiry into Litvinenko’s murder, after hearing from a range of scientific witnesses, concluded that all the claims which had for a decade been made about polonium were untrue: it is not expensive, it is not produced only in Russia, and it is scientifically impossible to trace the point of origin of any polonium sample, whether to Russia or to anywhere else.

The Judge who headed the inquiry could not conceal his disappointment, making the extraordinary statement in his inquiry report that though it could not be proved that the polonium had come from Russia, it nonetheless mighthave done so.

The result was that with the polonium evidence – the evidence which supposedly “proved” Russian state involvement – having collapsed, the Judge could only say that the Russian authorities were “probably” involved, and could only do so by speculating at length about possible but in fact unlikely connections between the Russian authorities and the two men who were Litvinenko’s likely murderers spiced up with further speculations about the possible motives the Russians might have had for wanting Litvinenko dead (see my detailed discussion of the Litvinenko inquiry here).

It is therefore alarming to see Theresa May in the Skripal case in effect doing the same thing as the Judge did in the Litvinenko inquiry: gingering up a case against the Russian authorities which is nowhere near proved by making general assertions about Russian conduct which have no direct bearing on the case itself.

How else to explain such comments as her comment about “Russia’s record of conducting state-sponsored assassinations, and our assessment that Russia views some defectors as legitimate targets for assassinations” and her utterly gratuitous reference to Crimea in another part of her statement?

That the British authorities actually know very little about the attack on Skripal, and are perfectly aware that the case they are making against Russia is nowhere near proved, is shown by the bizarre way they are now approaching Russia.

Instead of sharing with the Russians their conclusions about the nerve agent that was used to poison Skripal, and asking the Russians for their cooperation in a case where the victim was a former Russian citizen and where the nerve agent used is of a type that was developed in Russia, the British government has instead given the Russian authorities an ultimatum, saying that they must prove their innocence by tomorrow or the British government will assume they are guilty.

I say that because that is what these words in Theresa May’s statement amount to

Either this was a direct act by the Russian state against our country. Or the Russian government lost control of this potentially catastrophically damaging nerve agent and allowed it to get into the hands of others…

Should there be no credible response, we will conclude that this action amounts to an unlawful use of force by the Russian state against the United Kingdom……

That this is a way of proving guilt by reversing the burden of the proof – something which is both wrong and absurd in a criminal investigation in a modern European country – ought to be obvious.

What this ultimatum in fact actually shows is that the British government is determined to declare the Russian government guilty, but cannot prove its case, so it has to use an ultimatum to provide proof of guilt which ‘proof’ is however actually a sham.

The Russians have in fact previously offered their cooperation to solve the case.

Perhaps that offer is also a sham. However if the British authorities really were serious about finding out the truth of what happened or – better still – were really intent on making a case that could stand up in a court of law, they would accept this offer.

If it turned out that the Russian offer was a sham then in that case – but not before – the British government would be entitled to make public inferences from it.

Where does all this leave the case?

I do not know how Sergey Skripal and his daughter Yulia came to be poisoned. I have a completely open mind about that and about who may have been responsible. At this very early stage in the investigation when few facts are known so should everyone else.

The fact that the nerve agent used to poison Skripal apparently has a Russian origin – which is not the same as saying that it was made in Russia – is suggestive and important, but without much more knowledge about the other facts of the case it is impossible to say what weight should be placed on it.

I would refer again to the mistaken way the polonium evidence was initially assessed in the Litvinenko case (see above) and the way that mistaken assessment came to distort the whole conduct of that case.

Which brings me directly to the problem.

Now that the British government right at the beginning of the investigation has publicly declared that the attack on Skripal originated in Russia, with all the indications being that the British government will say tomorrow that the Russian authorities were directly responsible, the future conduct of the investigation has been irredeemably prejudiced.

It is now all but impossible for the British courts and the British police – who are ultimately officials of the British state – to come to any conclusion other than the one the British government has now publicly made for them.

The result is that what might be other promising lines of enquiry in the case will not now be followed up.

Again the lesson of the Litvinenko case is instructive. Having predetermined Russian guilt on the strength of an assessment of the polonium evidence which turned out to be wrong, it became impossible for the British authorities to draw back, so that the Judge who headed the inquiry into Litvinenko’s death came to the inquiry with his mind made up.

The result was that when the polonium evidence collapsed it was impossible for him to change his mind, so that instead of doing so he hunted around for other ‘evidence’ in order to find a way to make a verdict of Russian guilt, which he came to the inquiry already believing in.

Once upon a time the dangers of rushing prematurely to conclusions about guilt or innocence in a case were well understood in Britain.

Prior to a change in the law in 1981, which effectively abolished the sub judice rule, the sort of speculations that were made in 2006 in the Litvinenko case, and which are being made in the Skripal case today, would have been impossible.

Certainly it is inconceivable that the British government before 1981 would have publicly interfered in a case in the way that Theresa May has just done.

The fact that the British government is now doing so is in some respects even more concerning than the fact and manner of the attack on Skripal.